Opinion
Civil No. 3:90-CV-0614-H.
July 30, 2004
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff's Motion to Revive Judgment, filed June 9, 2004. For the following reasons, consideration of this motion is STAYED.
On June 14, 2004, this Court ordered Defendant Laurence B. Vineyard, Jr., to file a Response no later than noon, July 2, 2004, which he did not do. However, in light of the analysis below, this fact cannot be held against Defendant even if he received the Court's Order.
I. Background
On November 15, 1993, this Court entered judgment against Defendant Laurence B. Vineyard, Jr. ("Defendant"), in favor of Plaintiff Federal Deposit Insurance Corporation, as manager of the FSLIC Resolution Fund, for the sum of $10,000,000, plus costs of court, with interest to accrue at a rate of 10% per annum. No writ of execution was ever issued on this judgment. Because the judgment is now dormant, Plaintiff moves to revive the judgment pursuant to state law in accordance with Rules 81(b) and 69(a) of the Federal Rules of Civil Procedure.
II. Legal Standards
Rule 81(b) provides that "writs of scire facias and mandamus are abolished. Relief heretofore available by mandamus or scire facias may be obtained by appropriate action or by appropriate motion under the practice prescribed in these rules." FED. R. CIV. P. 81(b). Rule 69(a) elaborates on the practice and procedure to be applied with respect to executing a judgment:
As it pertains to this case, scire facias refers to "[a] writ requiring the person against whom it is issued to appear and show cause . . . why a dormant judgment against that person should not be revived." BLACK'S LAW DICTIONARY (8th ed. 2004).
The procedure on execution, in proceedings on and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with the practice and procedure of the state in which the district court is held, existing at the time the remedy is sought, except that any statute of the United States governs to the extent that it is applicable.
FED. R. CIV. P. 69(a). See FDIC v. Shaid, 142 F.3d 260, 261-62 (5th Cir. 1998) (applying state law in its analysis of an action to revive a judgment). According to state law, "[i]f a writ of execution is not issued within 10 years after the rendition of a judgment of a court of record or a justice court, the judgment is dormant and execution may not be issued on the judgment unless it is revived." TEX. CIV. PRAC. REM. CODE ANN. § 34.001. "A dormant judgment may be revived by scire facias or by an action of debt brought not later than the second anniversary of the date that the judgment becomes dormant." Id. at § 31.006. "The scire facias and returns thereon . . . shall conform to the requisites of citations and the returns thereon, under the provisions of these rules." TEX. R. CIV. P. 154.
III. Analysis
On November 15, 1993, this Court entered the judgment that Plaintiff now moves to revive. Because no writ of execution was ever issued on this judgment, the judgment became dormant ten years later on November 15, 2003. See TEX. CIV. PRAC. REM. CODE ANN. § 34.001. Plaintiff may seek to revive the judgment no later than November 15, 2005. See TEX. CIV. PRAC. REM. CODE ANN. § 31.006. Accordingly, Plaintiff's motion to revive judgment is timely because it was filed after the judgment became dormant on November 15, 2003, and before the expiration of two additional years.
The Court agrees with Plaintiff that state law allows for scire facias to be initiated by a motion to revive judgment. See Vackar v. Memorial Bank, No. 01-00-01033-CV, 2002 WL 1303424 at *1, 3 (Tex.App.-Houston [1 Dist.] June 13, 2002) (affirming an order granting scire facias on a motion to revive judgment); Thomas v. Poonen, No. 00-05-01233-CV, 2001 WL 755638 at *2 (Tex.App.-Dallas July 6, 2001) (referring to a "motion to revive judgment scire facias"). The Court further agrees with Plaintiff that the Court retains personal jurisdiction over Defendant during this scire facias action. See Berly v. Sias, 255 S.W.2d 505, 508 (Tex. 1953) ("[A] motion for scire facias is not an independent suit but is a continuation of the original suit. As a continuation of the original suit it is supported by the jurisdiction of the person obtained in the original case.").
Notwithstanding all of the above, the Court concludes that it cannot rule on the merits of the motion to revive judgment because Plaintiff has not demonstrated that it served Defendant with a summons and a copy of the motion. Rule 154 of the Texas Rules of Civil Procedure specifically provides that "scire facias and returns thereon . . . shall conform to the requisites of citations and returns thereon, under the provisions of these rules." TEX. R. CIV. P. 154. See also TEX. R. CIV. P. Rule 99 ("Issuance and Form of Citation"), 106 ("Method of Service"), 107 ("Return of Service"). In federal district court, a summons is the functional equivalent of a citation. Accordingly, having considered the applicable state law, the Court concludes that Plaintiff must serve Defendant with a summons, a copy of the motion to revive judgment, and a copy of this Memorandum Opinion and Order and demonstrate such service through a return of service.
Although Plaintiff certifies that it served a copy of the motion on Defendant via first class mail at his last known address, Plaintiff also admits that it "does not know if the address to which service of copies of this Motion are addressed is the proper address of the defendant." (P.'s Mot. at 4-5.)
IV. Conclusion
For the foregoing reasons, consideration of Plaintiff's motion to revive judgment is STAYED. Plaintiff is DIRECTED to serve Defendant Laurence B. Vineyard, Jr., with a summons, a copy of the motion to revive judgment, and a copy of this Memorandum Opinion and Order and to demonstrate such service through a return of service. The Court will take up this motion at such time as Plaintiff has filed a return of service, and Defendant has had twenty (20) days to answer or otherwise respond to the motion. Failure to exercise ordinary diligence in obtaining service on Defendant could result in the expiration of the two-year period for reviving a dormant judgment. See Hughes v. McClatchy, 242 S.W.2d 799, 804 (Tex. 1951) (holding that, under a predecessor statute, the appellant was under a continuing duty to exercise "ordinary diligence" in obtaining service in a suit to revive a dormant judgment).
SO ORDERED.